HB4–After Five Years – Plaintiff’s Perspective
by Paula Sweeney and Jim M. Perdue, Jr.
INTRODUCTION
In 2003 the combined forces of the insurance, medical and tort reform lobbies succeeded
in destroying access to the courts for large segments of the Texas population. The
Republican hegemony, with control of the offices of Speaker of the House, Lt. Governor
and Governor, prevented any meaningful dialogue or compromise on the enactment of
all of the industry’s wishes. Since that time, the courts, with a miniscule number of
exceptions, have marched in lockstep with those political goals. The Supreme Court in
particular, rather than acting as a check and balance on the executive and legislative
branches of government, has articulated its function as one of effectuating the purposes
of those other bodies. “. . .if the legislative purposes behind the statute are still attainable.
. .Texas courts should not frustrate those purposes by a too-strict application of our own
procedural devices.” In Re McAllen Medical Center, Inc., ___ S.W. 3d ___, 2008 WL
2069837 (Tex. 2008). At least, this is the view articulated by Justice Brister, speaking for
the majority in the Court’s most recent pronouncement on the interplay between the
judicial and executive branches. This paper thus studies jointly the effect of legislative
and judicial tort reform efforts.
This paper is designed as a summary only, and as a roadmap to some of the significant
changes to tort law in Texas. The reader is also directed to several excellent law
review articles: “Judicial Tort Reform in Texas”, Anderson, David A., Review of Litigation,
University of Texas, Winter 2007, “Juries Under Siege”, Hardeberger, Phil, Chief
Justice, 30 St. Mary’s L.J. 1, 1998, “Judges, Juries, and Review in Courts”, Dorsaneo,
William V., 53 SMU L. Rev. 1497, 2000, “A Survey of Sea-Change on the Supreme Court
of Texas and Its Turbulent Toll on Texas Tort Law”, Rackley, J. Caleb, 48 S. Tex. L. Rev.
733, 2007, and “Jury Erosion: The Effects of Robinson, Havner, & Gammill on the Role
of Texas Juries”, 32 St. Mary’s L.J. 383, 2001.
Multiple commentators have noted the harsh changes in climate in Texas in recent
years. As Professor Anderson puts it: “…advancing an ideology by adopting congenial
legal principles is one thing; advancing an anti-tort ideology simply by refusing to allow
plaintiffs to succeed is quite another.” “Judicial Tort Reform in Texas”, Anderson, David
A., Review of Litigation, University of Texas, Winter 2007.
I. THE STATE OF MEDICAL MALPRACTICE
LITIGATION IN TEXAS IN
2008
A. Chapter 74
It could be argued that the enactment of
Chapter 74 of the Civil Practices & Remedies
Code during the 2003 legislative session
effectively abrogated causes of action
in Texas for health care liability. Certainly
the limitations on those claims are
unprecedented. They include:
i. Caps on intangible damages.
Chapter 74, Section 74.301 limits noneconomic
damages to $250,000 for
physician negligence and another
$250,000 for hospital employee negligence.
In the odd hypothetical situation
that there might be a second negligent
hospital, another $250,000 cap is available.
Section 74.303 limits damages in
wrongful death cases. There is some
debate whether wrongful death damages
are limited by the statute to
$500,000 for all damages except medical
expenses, escalating with the CPI
since 1977 (the amount in 2008 is
roughly 1.6 million), or whether within
that cap there is an additional
$250,000/$500,0000 cap on intangibles.
No case law has resolved this dichotomy.
Further, it is important to note that
there is no cost of living (CPI) adjustment
for the intangible caps. Thus, by
way of example, in June, 2008, the
$250,000 cap enacted by the legislature
in 2003 is now worth only $213,000
using a CPI calculator.
ii. A shortened statute of limitations
Chapter Section 74.251 takes the wellestablished
language of Article 4590i
and adds the following section (b):
A claimant must bring a health care
liability claim not later than ten years
after the act or omission that gives rise
to the claim. This subsection is intended
as a statute of repose so that all
claims must be brought within ten
years or they are time barred.
Undiscoverable injuries.
Appellate
courts agree that in cases of undiscoverable
injuries, the statute of repose is
unconstitutional. The ten-year statute
of repose is unconstitutional because it
unreasonably restricts plaintiff ’s right
to sue before she has a reasonable
opportunity to discover the wrong and
bring suit. Rankin v. Methodist Healthcare
System, ___ S.W. 3d ___, 2008 WL
587444 (Tex. App. – San Antonio 2008,
n.p.h.). Ms. Rankin had a hysterectomy
performed in 1995 at Methodist. She
began experiencing abdominal pain in
2006, and underwent exploratory surgery
where a surgical sponge was found
in her abdomen. The surgery was in
July of ’06 and suit was filed in October
of ’06. Defendant sought dismissal on
the basis of the statute of limitations
and the statute of repose. Plaintiff filed
an affidavit to the effect that discovery
of the sponge was impossible prior to
the expiration of the ten-year period of
repose, and there was no controverting
evidence. The Court cited Nelson v.
Krusen, 678 S.W.2d 918 (Tex. 1984) and
Neagle v. Nelson, 685 S.W.2d 11 (Tex.
1985) to support the point that the
statute was unconstitutional because it
required her to bring a claim before she
had any reason to do so, and effectively
abolished her ability to bring a wellestablished
common law cause of
action without providing any reasonable
alternative. Conversely, however,
the Houston 1st District Court has
found that a woman who had a
retained sponge in her abdomen for
many years was barred by the statue of
limitations from bringing suit because
she had “a reasonable opportunity to
discover the alleged wrong.” Plaintiff
contended that the law required only
an inquiry of whether she knew or
should have known of her injury during
the limitations period, which she
did not. The defense contended, successfully,
that plaintiff had to prove that
it was “impossible or exceedingly difficult”
for her to have discovered the
injury during this time period. The
Houston Court found that it was not
impossible or exceedingly difficult, and
that plaintiff did not show that she
could not have discovered the sponge
sooner. Walters v. Cleveland Regional
Medical Center, ___ S.W. 3d ___, 2007
WL 4465298 (Tex. App. – Houston [1st]
2007, pet. filed).
Query.
Must patients now perform
their own exploratory abdominal surgeries?
Minors.
The statute has also been held
unconstitutional as to minors. “If this
argument [the constitutionality of
Chapter 74] is to prevail, it must do so
in the Supreme Court of Texas. We are
bound by Sax and Weiner.” Adams v. Gottwald, 179 S.W. 3d 101(Tex. App. –
San Antonio, 2005, pet. refused).
iii. An algebraic expert report requirement.
Chapter 74, Section 74.351 took an
already incredibly complex area of law
under Article 4590i and made it more
so. A conservative estimate is that hundreds
of lawsuits have been dismissed
due to alleged technical deficiencies in
the reports, despite the obvious merit
of the claims. Examples include:
Service.
Even if the defendant has a
copy of the report, it must be served on
the defendant by plaintiff or plaintiff is
subject to dismissal. University of Texas
Health Science Center at Houston v.
Gutierrez, 237 S.W. 3d 869 (Tex. App. –
Houston [1st] 2007, pet. filed). Nonsuit. Plaintiff can no longer nonsuit,
despite an absolute right to do so.
Nonsuiting during the 120-day period
does not stop the clock from running.
Mokkala v. Mead, 178 S.W. 3d 66 (Tex.
App. - Houston [14th], 2005, pet.
denied).
Damages.
One court has held that
plaintiff ’s expert report must contain a
causal link to all of plaintiff ’s damages,
even if those damages have not yet
occurred at the time of the writing of
the report. Farishta v. Tenet, ___
S.W.3d ___, 2007 WL 1744417 (Tex.
App. – Fort Worth, 2007, n.p.h.).
Constitutionality. Several courts have
held the report requirement constitutional
under various grounds. The
report does not violate the separation
of powers provision of the Texas Constitution.
Wilson-Everett v. Christus St.
Joseph, 2007 ___ S.W.3d ___, 2007 WL
4198993 (Tex. App. – Houston [14th]
2007 pet. filed). The report does not
violate the due process clause. Bogar v.
Esparza, ___ S.W. 3d ____, 2007 WL
1852904 (Tex. App. – Austin 2007
n.p.h.).
Assumptions.
The report cannot be
based on assumptions. Cooper v. Arizpe, 2008 WL 940490 (Tex. App. –
San Antonio 2008, n.p.h.) (not designated
for publication).
Service.
A report filed at the court
house but not served on a party results
in dismissal. Quint v. Alexander, 2005
WL 2805576, (Tex. App. – Austin, 2005,
pet denied) (not designated for publication).
Service must comply with Rule
21(a). Service by regular mail instead
of certified mail, since not in compliance
with Rule 21(a), results in dismissal.
Kendrick v. Garcia, 171 S.W. 3d
698 (Tex. App. – Eastland 2005 (pet.
denied).
Name of defendant.
A report which
identified the defendant by role (“the
transplant surgeon”) was inadequate
because it did not use the surgeon’s
name. Baylor University Medical Center
v. Biggs, 237 S.W.3d 909, (Tex. App.
– Dallas 2007 pet. filed).
iv. Mandatory payout of future damages.
Chapter 74, Section 74.501 to 74.507
requires that, if the hapless plaintiff
should die from his or her injuries
before a complete stream of payments
has been made, the payments revert to
the tortfeasor. This is a return of the
common law “it’s cheaper to kill than
to maim” doctrine. Chapter 74.501-7
also requires that “some or all” of
future payments be structured, without
giving the Court discretion to require a
lump sum payment of all the damages.
v. Discovery Moratorium
Chapter 74, Section 74.351 prevents
most discovery before the filing of the
120 day expert report. This has been
extended by case law to preclude the
deposition of the defendant physician,
In Re Miller, 133 S.W. 3d 816 (Tex. App.
– Beaumont, 2004, n.p.h.), and also to
preclude Rule 202 presuit depositions,
In Re Jorden, 249 S.W. 3d 416 (Tex.
2008). The Supreme Court in the Jorden
case found that Rule 202 depositions
constitute “a cause of action
against a health care provider,” therefore
were “health care liability claims”
and thus fell within the discovery
moratorium. Thus, plaintiff must produce
the algebraically constructed
report without most of the necessary
information to do so.
vi. Willful and Wanton Standard
The legislature also codified a willful
and wanton standard of proof in emergency cases. C.P.R.C. 74.153. The willful
and wanton standard for emergency
room cases has been held constitutional.
Dill v. Fowler, ___ S.W. 3d ___, 2008
WL 1722249 (Tex. App. – Eastland
2008, n.p.h.).
vii. What is a Health Care Liability
Claim?
Apparently, under the new definitions
of Chapter 74, almost anything is
health care. Appellate courts have taken
their cue from Diversicare v. Rubio, 185
S.W.3d 842 (Tex. 2005), wherein the
Supreme Court held that the multiple
rapes and assaults of a nursing home
patient constituted health care. The
Dallas Court of Appeals has followed
suit in finding that a claim against a
nursing home for hiring an unfit care
provider who injured a resident by
throwing scalding water on him was a
health care liability claim, requiring an
expert opinion. Educare Community
Living Corp. v. Rice, 2008 WL 2190988
(Tex. App. – Dallas 2008, n.p.h.).
Later, a plaintiff alleged that a chiropractor
rubbed her genitals during chiropractic
examination. The Court, consistent
with Rubio, supra, held that this
constituted “health care,” that she was
thus bringing a “health care liability
claim,” and was thus required to produce
an expert report. Vanderwerff v.
Beathard, 239 S.W. 3d 406 (Tex. App. –
Dallas 2007 n.p.h.).
viii. Are health care providers now a
constitutionally prohibited “special
class”?
All of these changes have resulted in a
situation in which health care providers
are the most specially protected class in
Texas history.
An interesting start to an analysis of
this special protection for health care
providers is found in Lucas v. United
States, 757 S.W.2d 687 (Tex. 1988).
Therein, Justice Kilgarlin, writing for
the majority, noted as follows:
“Although not necessary in light
of our ‘open courts’ holding, one
wonders whether the drafters of
the Texas Constitution intended
for the legislature to enact special
laws for the protection of specified
classes of tort feasors. Compare
Tex. Const. art. I, §3 (“[N]o
Man, or set of men, is entitled to
exclusive...privileges, but in consideration
of public service.”)
with Tex. Const. art. III, §56
(“[I]n all other cases where a
general law can be made applicable,
no local or special law shall
be enacted....”). A prior Constitution
left it to the legislature, “in
its judgment,” to decide when a
general law could be made applicable.
Tex. Const. art. XII, §40
(1873). This language does not
appear in the present Constitution.
Tex. Const. art. III, §56. at
page 689.”
The Article I, §3 prohibition against
public emoluments has been raised in
the Supreme Court before. The Plaintiffs
in Nelson v. Krusen, 678 S.W.2d
918 (Tex. 1984), included that section as
part of their constitutional challenge to
the purported absolute two year statute
of limitations in Article 4590i. Because
the Court invalidated the statute of limitations
under the open courts provision,
Tex. Const. art. I, §13, consideration
of the other constitutional claims,
including the equal protection public
emoluments argument, was unnecessary.
The next time the term is found in
the health care liability context is in
Rose v. Doctors Hospital Facilities, 735
S.W.2d 244 (Tex. 1987) but therein,
after citing the provision, the Court
went on to discuss whether the application
of differing standards of treatment
for different types of plaintiffs violated
equal protection. It did not specifically
discuss whether the treatment of different
classes of Defendants, or the accord
of public emoluments, or privileges, to
specific individuals or groups, violated
the Texas Constitution. Similarly, in
Lucas, the Court considered the equal
protection clause, but its analysis keyed
on the treatment of disparate classes of
Plaintiffs, not on special protection
afforded to a group or groups of
Defendants.
Each time the Court has considered
the equal protection clause of the Texas
Constitution, it has done so in the context
of differentiating between classes of
Plaintiffs. It has yet to address the argument
raised by Justice Kilgarlin in his
Lucas footnote, that the drafters of the
Texas Constitution never intended for
the legislature to enact special laws for
the protection of specified classes of
tort feasors [public emoluments]. This
Constitutional challenge seems uniquely
suited to the “wilfull and wanton”
standard of conduct embodied in Section
74.153.
Perhaps in order to determine
whether health care providers have in
fact been set aside as a specially protected
class, in contravention of Article
I, §3, it would be helpful to consider
the array of special protections afforded
health care providers in Texas law.
No other class of litigants, or citizens,
enjoys the protection that health
care providers have under Texas law. A
brief summary of those protections is
instructive:
1. Damage Caps.
In injury
cases, though previously held
unconstitutional at the $500,000
level, those caps are now
$250,000 for all claimants for
intangible damages arising from
a single occurrence. In death
cases, the caps are now a total of
approximately $1.5 million for
the entire case, including loss of
earnings, and only excepting
medical costs.
2. The Stowers Doctrine Does
Not Apply.
Under Chapter 74,
unlike the predecessor statute,
the insurance company for the
physician enjoys the protection
of the caps regardless of whether
it negotiates in good faith or
exposes the physician to an
excess verdict.
3. Expert Reports.
§74.351.
Plaintiff must, within 120 days of
filing suit, provide a fantastically
detailed, intricate and complex
expert report. A tremendous cottage
industry has sprung up in
which defense lawyers and their
insurers strive to have valid cases
dismissed for alleged technical
deficiencies in Plaintiffs’ reports.
The Courts have been happily
complicit in this endeavor. No
other defendant has this unique
benefit: not just a peek, but a
long look at Plaintiff ’s hand
before discovery is even well
under way.
4. Discovery Stay.
§74.351(s)-
(u). Only very limited discovery
is allowed before Plaintiff must
generate this technically
demanding report. No other
class of litigants enjoys the boon
of having the other side’s case
mapped out before having to
respond to the allegations. In
fact, though not well supported
by the language of Chapter 74,
one court, in In Re Miller, 133
S.W. 3d 816 (Tex. App. – Beaumont,
2004, n.p.h.), has held that
the defendant physician cannot
even be deposed until after plaintiff
’s expert report has been filed.
Why should defendant physicians,
unique among defendant
litigants of all other possible categories,
have before them a road
map of plaintiff ’s claims before
they can testify to what they did,
why they did it, what they
observed, and so on?
5. Sixty (60) Day Notice Letter
of Intent to File Claim.
§74.051.
With the exception of governmental
entities, no other class of
litigants is entitled to this kind of
warning. The government gets it
because of the common law
notion that “the King can do no
wrong.” No such fiction, at
common law, applied to health
care providers. The stated legislative
purpose of Section 74.051 is
to encourage early negotiation
and settlement. Yet, the statistics
make this a mockery. The notice
period does, however, allow
plenty of time before court
authority can be invoked to prevent
chicanery with the records.
6. Rigid Two (2) Year Statute
of Limitations.
§74.251. This provision
(or its 4590i predecessor)
has been construed so strictly
that in some delayed onset cases,
the Plaintiff ’s cause of action is
extinguished before it could have
been filed. This protection is
unique to health care providers.
In death cases, the statute in
health care liability cases can run
before the patient dies - thus precluding
suit... something else
found with no other class of
wrongful death Defendants.
7. The Peer Review Privilege.
Article 4495-B, Sections 5.06 and
4.05, and Texas Health and Safety
Code, §161.031-.033 create a privilege
for properly constituted peer
review proceedings. Problematically
however, these privileges
have been construed so broadly
that Plaintiffs are often precluded
from discovery of the only information
available to prove their
claims. No other industry has
such an all-encompassing exception
from discovery into posttort
investigations. The privilege
is based on the increasingly fictional
nature of collegial, selfpolicing
health care practice.
8. Proof of Malice in Negligent
Credentialing Claims.
Since Agbor v. St. Luke’s Episcopal
Hospital, 952 S.W.2d 503 (Tex.
1997), Plaintiff ’s burden of proof
in negligent credentialing cases,
including credentialing of drug
impaired physicians, requires
proof of malice on the part of the
hospital. Needless to say, no such
proof is required in cases involving
negligent association or
retention of any other profession
– lawyers, architects, engineers or
the like.
9. The Wilful and Wanton
Burden of Proof in Emergency
Care.
§74.153. All other tort feasors
in our society are held to a
standard of negligence. Uniquely,
health care providers can only be
found liable if a Plaintiff can
prove willful and wanton negligence
in the emergency room
context.
10. The National Physician’s
Databank (NPDB), to which
insurers are required to submit
data any time a health care liability
claim is paid on behalf of a
doctor, whether by way of settlement,
verdict or final judgment,
is closed to the public. Only hospitals
and insurance carriers have
access to this information. This
federally managed database is
unique in keeping this mandatory
data from the public, which
would clearly be well served by
having access to information
about the claims history of its
health care providers. Such protection
has led to gamesmanship
on the part of the industry in significantly
under-reporting settlements
by physicians.
11. Mandatory Payment for
Future Losses.
§74.501. Only
health care liability insurance
companies are afforded this
boon. Personal injury and
wrongful death damages are considered “liquidated damages,”
that is, the best assessment of the
present value of damages,
including future damages, is
made at the time of settlement or
judgment, and the amount of the
recovery is based upon that calculation.
Thus, insurers pay the
present value of future damages
at the time of settlement. Only
health care insurers in Texas are
provided the protection of a
return of future payments should
the hapless claimant die before
payments are fully made. The
insurance industry thus gets a
multiple reduction: the value of
future payments is reduced to
present value for purposes of
computing the amount of the
judgment, yet if the claimant
does not live to receive all his/her
payments, the funds are returned
to the carrier.
12. 202 Depositions.
An active
political battle is in process to
protect health care defendants
from the 202 deposition process,
though no such protection exists
to any other class of litigants.
Particularly troublesome is the
fact that health care records may
be indecipherable, incomplete,
lost, or deliberately obfuscative,
such that only a Rule 202 deposition
can provide plaintiff with
adequate information from
which to generate a Rule 74.351
report, yet health care providers
are actively striving to protect
themselves from having to give
such depositions. Appellate
courts are divided on whether
202 depositions are appropriate
in health care liability claims. In
Re Christopher Allan, 191 S.W.3d
483 (Tex. App. - Tyler 2006, pet.
granted) holds that a request for
a 202 deposition is not a “health
care liability claim,” and that
Rule 202 depositions are therefore
permissible, and not precluded
by either the discovery
moratorium or In Re Miller, 133
S.W. 3d 816 (Tex. App. – Beaumont,
2004, n.p.h.). See also, In
Re Nix, San Antonio, permitting
depositions under Rule 202 in
health care liability claims, and
In Re Lifecare Hospitals of Plano,
2005 WL 3360886 (Tex. App. –
Dallas 2005 n.p.h.), also permitting
depositions. A contrary
result, on different grounds, was
reached in In Re Raja, 216 S.W.3d
404 (Tex. App. - Eastland, 2006,
pet filed) and in In Re Memorial
Hermann Hospital System, 209
S.W.3d 835 (Tex. App. – Houston
[14th Dist.], 2006, n.p.h.). Both
of these cases barred plaintiffs
from taking Rule 202 depositions.
13. Suits Involving the Death of
an Unborn Child.
Physicians are
the only class of tortfeasors
against whom no cause of action
may be asserted for the wrongful
death of an unborn child. CPRC
Section 71.003(c) provides a
cause of action for negligently
causing the death of an unborn
child. This section was added by
the 2007 legislature. It provides
an exemption for physicians:
“(c) this subchapter does not
apply to a claim for the death of
an individual who is an unborn
child that is brought against: …
(4) A physician or other health
care provider licensed in the
state, if the death directly or indirectly
is caused by, associated
with, arises out of, or relates to a
lawful medical or health care
practice or procedure of the
physician or the health care
provider.”
B. Negligent Credentialing
The Supreme Court eliminated negligent
credentialing causes of action in Agbor v.
St. Luke’s Episcopal Hospital, 952 S.W. 2d
503 (Tex. 1997, in 1997. The Court applied
a malice standard to “negligent” credentialing
claims.
Oddly, in a later opinion by Chief Justice
Jefferson, the Court again discussed
the issue of negligent credentialing.
Though the case turns largely on the issue
of what is or is not health care (credentialing
claims, the holding goes, are health
care liability claims - overruling a well-reasoned
Dallas Court of Appeals opinion to
the contrary), it also does two interesting
things with regard to negligent credentialing
causes of action.
1) The Court “assumes without
deciding” that Texas recognizes such
claims and
2) The Court, throughout the extensive
opinion, refers to such claims as
“negligent” credentialing, not “malicious”
credentialing. “We hold that
a claim for negligent credentialing is
a health care liability claim under
the MLIIA.”
Interestingly, in a footnote, the Court
states “this Court has never formally recognized
the existence of a common-law
cause of action for negligent credentialing,
but we will assume for purposes of this
case that such a claim exists.” The opinion,
throughout, carries this assumption
forward and implicitly answers the question
raised in Agbor as to whether or not a
claim for negligent credentialing exists in
Texas. By the Supreme Court’s holding, it
now seems clear that a cause of action for
“negligent” credentialing in fact exists.
Yet the Court went on to hold that malice
must be proven for a claimant to be
able to pursue a “negligent” credentialing
cause of action. Worse, on the facts of the
case, plaintiff failed to meet his burden of
proof even when 1) the physician was a
known drug user, 2) the hospital chief of
staff knew of the impairment and 3) the
chief of staff admitted the physician was a
danger to patients. This raises the question: What possible factual scenario
would support a claim for negligent credentialing
(requiring proof of malice) if
the facts in Romero did not? Romero v. KPH Consolidation, 166 S.W.3d 212 (Tex.
2005).
Therefore, credentialing claims are virtually
impossible in Texas.
C. Bystander Claims
The Supreme Court eliminated bystander
claims in health care liability claims in the
Trevino case. Edinburg Hospital Auth. v.
Trevino, 941 S.W.2d 76 (Tex. 1997). Justice
Spector, writing for the majority, reasoned
that since medical care is always difficult
to watch and traumatic, that it would be
wrong to allow plaintiffs to recover for
witnessing negligent health care.
D. Loss of Chance
The Supreme Court eliminated loss of a
chance causes of action in Kramer v.
Lewisville Memorial Hospital, 858 S.W. 2d
397 (Tex. 1993). The Court established as
policy in Texas that having “only” a 49
percent or less chance of survival is not
significant enough to support a claim for
negligent loss of that percentage chance.
Accordingly, plaintiff in a misdiagnosis or
delayed treatment case must prove that,
but for the negligence, he or she would
have had a greater than 50 percent chance
of survival.
E. Death of a Fetus
1. Judicial Action
The Supreme Court has steadfastly
refused to recognize a cause of
action for wrongful death of an
unborn fetus. Witty v. American
Gen. Capital Distrib., Inc., 727
S.W.2d 503 (Tex. 1987).
2. Legislative Action
Physicians are the only class of tortfeasors
against whom no cause of
action may be asserted for the
wrongful death of an unborn child.
CPRC Section 71.003(c) provides a
cause of action for negligently causing
the death of an unborn child.
This section was added by the 2007
legislature. It provides an exemption
for physicians: “(c) this subchapter
does not apply to a claim for the
death of an individual who is an
unborn child that is brought
against: …
(4) A physician or other health care
provider licensed in the state, if the death
directly or indirectly is caused by, associated
with, arises out of, or relates to a lawful
medical or health care practice or procedure
of the physician or the health care
provider.”
F. Good Samaritan Cases
The legislature and the Supreme Court
together have essentially abolished health
care liability causes of action where the
Good Samaritan Defense applies. Defendant
must conclusively establish the Good
Samaritan defense. The Good Samaritan
defense is subject to three exceptions: 1) a
doctor performing his or her work in an
emergency room, 2) a doctor associated by
the admitting or attending physician or 3)
a doctor who charges for his or her services.
An issue of material fact existed in the
Do case as to whether defendant was
“associated by the admitting or attending
physician”, and dismissal was therefore
improper Chau v. Riddle, ___ S.W. 3d ___,
2008 WL 1069841(Tex. 2008). Since it was
part of the anesthesiologist’s job to assist
in the delivery room with the intubation
of newborns, when required, defendant’s
Good Samaritan defense failed. The conduct
in question was part of the professional’s
ordinary duties. Chau v. Riddle,
___ S.W. 3d ___, 2008 WL 2069841 (Tex.
2008).
1. Legislative Changes
C.P.R.C. 74.151 recodified the Good
Samaritan Statute to provide immunity
for anyone who in good faith
administers emergency care in the
absence of willful or wanton negligence,
if that person was not acting
in expectation of remuneration.
2. Judicial Changes
The Good Samaritan Statute shields
emergency medical services personnel.
Moore v. Trevino, 94 S.W. 3d
723 (Tex. App. – San Antonio 2002,
writ ref ’d). If a physician proves
that he or she would not ordinarily
have received remuneration for the
care given, he is entitled to immunity.
McIntyre v. Ramirez, 109 S.W. 3d
741 (Tex. 2003).
G. Informed Consent
Texas law has been for decades that a
physician must respect a plaintiff ’s decisions
about the care plaintiff is or is not to
receive. The Supreme Court has abrogated
this ruling in Schaub v. Sanchez, 229 S.W.
3d 332 (Tex. 2007). Therein, Ms. Sanchez
had previously agreed to a particular type
of pain relief procedure. In the instant circumstance,
she very specifically told the
physician she did not want that same type
of block again. However, once she was
unconscious, the physicians did in fact
perform that type of block, resulting in
injuries. The Supreme Court reasoned that
since Ms. Sanchez had previously consented
to such surgery, then she had given her
informed consent. In other words, in
Texas, at least in medicine, “no” apparently
does not mean “no.”
H. Comparative Negligence
It has been well-established law for
decades that a plaintiff cannot be comparatively
negligent in either being in bad
health or giving a bad history. Comparative
negligence could only apply to failure
to follow a physician’s orders or to causing
oneself additional damage. The Supreme
Court has abrogated this rule in Jackson v.
Axlerad, 221 S.W. 3d 650 (Tex. 2007).
Therein, the Court holds that a patient (in
this case a physician) must provide an
adequate history or can be found negligent
of contributory negligence.
I. No Vicarious Liability for Emergency
Rooms
In Sampson v. Baptist Memorial Hosp.
Sys., 969 S.W.2d 945 (Tex. 1998), the Court
ruled that there is no hospital liability for
negligent emergency room physicians even
though such liability has been recognized
previously in Texas and in many other
jurisdictions.
J. Duty to Warn Third Parties
Praesel v. Johnson, 967 S.W.2d 391 (Tex.
1998) is the case in which the Texas
Supreme Court found that a physician
owes no duty to third parties to warn
epileptic patients not to drive, even when
such driving causes injury to third parties.
K. Foreseeability of Harm
Two negligent discharge cases illustrate the
difficulty in proving the foreseeability
component of a negligent discharge cause
of action. First, a patient who was sought
to be involuntarily confined as a danger to
himself “or” others was discharged. He
subsequently killed three people. Families
of those three brought suit, and the Dallas
Court finds “generally, there is no duty to
control the conduct of others.” Further,
the conduct was “not foreseeable” because
although he threatened suicide and injury
to himself, or danger to himself “or” others,
the application for emergency detention
did not specify that he was a danger to
himself “and” others. And accordingly “the
evidence negates foreseeability as a matter
of law.” B o ren v. Texoma Medical Center,
___ S.W. 3d ___, 2008 WL 1886770 (Tex.
App. – Dallas 2008, n.p.h.). Second, the
Supreme Court finds that an emergency
room which dismissed a mentally ill
patient, only to have him commit suicide
within two days, was not liable because
causation was “too attenuated” to support
liability. Providence Healthcare v. Dowell,
___ S.W. 3d ___, 2008 WL 2154093 (Tex.
2008). Twenty-one year old Lance Dowell
had a history of threatening suicide, and
took an overdose of Tylenol along with
slashing his wrists. He was taken to the
emergency room where he was seen and
discharged. The next day he hung himself.
The jury found negligence and proximate
cause and awarded damages to decedent’s
parents for their loss. The Supreme Court
re-finds facts found by the jury, reassesses
expert testimony, redetermines the probable
outcome of non-negligent conduct,
and, substituting its judgment for that of
the jury, finds “we conclude that Lance’s
discharge from Providence’s ER did not
proximately cause his death.” A fine example
of judicial fact-finding in contravention
of the constitutional prohibitions of same.
L. Tort Claims Immunity
The 2003 Legislature abolished the distinction
between medical and governmental
discretion, and has, in essence, barred suit
against physicians employed at state or
county hospitals. Previously, where physician
employees could be held liable for
their exercise of medical discretion, they
are now included in the definition of
“public servant,” and therefore have conferred
upon them governmental liability
protection. Tex. Civ. Prac. & Rem. Code
§108.001(3). This limits their liability for
damages to no more than $100,000, as
long as their conduct was within the
course and scope of their employment as
physicians. Plaintiffs will also have to
come within the tort claims limitations on
liability, including the “use” or “misuse”
of tangible property discussed below. This
new statute applies to claims filed after
September 1, 2003.
In Kassen v. Hatley, 887 S.W.2d 4 (Tex.
1994), the Texas Supreme Court held that
government-employed medical personnel
are not immune from tort liability if the
character of the discretion they exercise is
medical and not governmental. I d. at 11.
The Court overruled the language in
Armendarez v. Tarrant County Hosp. Dist. ,
781 S.W.2d 301 (Tex. App. – Fort Worth,
1989, writ denied), stating that official
immunity protects only “uniquely governmental”
discretionary functions, instead
adopting the governmental/ occupational
function test. The Kassen Court reasoned
that the phrase “uniquely governmental” is
ambiguous and does not state the appropriate
method for determining if doctors,
nurses, or other government employees
have official immunity. 887 S.W.2d 4 at 10.
The Court held “that governmentemployed
medical personnel are not
immune from tort liability if the character
of the discretion they exercise is medical
and not governmental. A state- employed
doctor or nurse has official immunity from
claims arising out of the exercise of governmental
discretion, but is not immune
from liability arising from the exercise of
medical discretion.” I d. at 11.
Importantly, the legislative action barring
suit against physicians does not apply
if the governmental entity could not have
been sued. If the claim for example does
not involve misuse of tangible personal
property, then the governmental entity
could not have been sued, and the
employee still can be. Phillips v. Dafonte,
187 S.W. 3d 669 (Tex. App. – Houston
[14th Dist.]), 2006, n.p.h.), Williams v.
Nealon, 199 S.W. 3d 462 (Tex. App. –
Houston [1st Dist.], 2006, pet filed). See
also Franka v. Velasquez, 216 S.W. 3d 409
(Tex. App. – San Antonio, 2006, pet. filed)
in which the court found that the allegations
against the individual physicians
were essentially allegations of negligence,
not negligent use of tangible property per
se, and that, accordingly, there was no
immunity for them. Similarly, the plaintiff
in Walkup v. Borchardt, 2006 WL 3455254
(Tex. App. – Amarillo, 2006, n.p.h.) (not
designated for publication), made allegations
that the defendants were negligent in
failing to order appropriate tests, and in
failing to act on her symptoms until she
was paralyzed. These allegations did not
include allegations of use or misuse of tangible
property, and thus, plaintiff could
not have brought suit against the state
entity, and suit against the physicians was
permitted.
Physicians must conclusively establish
that their allegedly negligent conduct
occurred during the exercise of governmental,
as opposed to medical discretion.
Failing to conclusively establish such proof
precludes application of the affirmative
defense of official immunity. Mussemann
v. Villarreal, 178 S.W.3d 319 (Tex. App. -
Houston [14th], 2005, pet. denied).
Nurses seeking dismissal under 101.106,
Texas Civil Practice and Remedies Code
must show that plaintiffs “could have
sued” the tort claims hospital for which
the defendant nurses worked. Absent
proof that plaintiff could have sued the
employer, the nurses were not entitled to
dismissal under 101.106(f ). Lanphier v.
Avis, ___ S.W.3d ____, 2008 WL 89755
(Tex. App. – Texarkana, 2008 n.p.h.).
Similarly, in Hall v. Provost, 232 S.W.3d
926 (Tex. App. – Dallas 2007 n.p.h.),
Plaintiff ’s allegations against the physician
were “simply medical malpractice claims
and are not encompassed by the Texas
Tort Claims Act limited waiver of sovereign
immunity.” “She has not alleged her
injury was caused by a condition or use of
tangible or real property.” Likewise, Dr.
Provost has not provided any evidence
that a condition or use of any tangible
property by a governmental unit caused
the injury for which plaintiff sued. Therefore,
since defendant doctor Provost did
not show that plaintiff could have sued the
hospital, the dismissal of Dr. Provost was
improper, even though he did successfully
prove both that he was an employee of the
tort claims hospital and that he was acting
within the course and scope of his
employment. The same result was reached
for the same reasons in Turner v. Zellers,
in which the trial court erred in dismissing
claim against the physician. Turner v.
Zellers, 232 S.W. 3d 414 (Tex. App. – Dallas
2007 n.p.h.).
The 2003 Legislature in a complicated
“election of remedies” section, applicable
to claims filed after September 1, 2003,
barred suit against both the governmental
employee and the governmental unit. Suit
against one is an irrevocable election that
forever bars recovery against the other.
Tex. Civ. Prac. & Rem. Code Ann.
§101.106(a), (b).
Further, settlement of any claim under
the Tort Claims Act with an employee bars
judgment or recovery from the governmental
unit. Tex. Civ. Prac. & Rem Code
Ann. §101.106(d).
If the employee is sued, upon motion
requesting dismissal, the Court “must”
grant the dismissal. Tex. Civ. Prac. & Rem.
Code Ann. §101.106(e).
Thus, physician employees of tort
claims entities are now provided with very
broad new protections.
In Villasan v. O’Rourke, 166 S.W.3d 752,
( Tex. App – Beaumont, 2005, pet. filed), the
Court makes clear that Plaintiff has little
choice in this area. In Villasan, the plaintiffs
initially sued both a Tort Claims hospital
and an individual physician employee of
that entity. Thereafter, they non-suited the
hospital and sought to proceed only against
the physician, who filed a motion to dismiss
under Section 101.106(e), which was
granted. In the interim, the statute of limitations
against the entity had run, so plaintiffs
found themselves out of court. The
Court is clear in its interpretation of the
statute: the Legislature meant to “encumber”
plaintiffs’ ability to pursue the alternative
theories that either the governmental
employee was acting within the course and
scope of his/her duties (and thus the entity
is responsible for the employee’s actions),
or the employee was acting outside the
scope of those responsibilities, and is thus
individually liable. In effect, Section 101.106
bars this approach, and forces the irrevocable
election to be made at the time of filing
of suit.
The O’Rourkes request that we construe
the statute to allow TTCA claimants
two elections to determine against whom
to proceed. We consider their request in
light of the enactment of a comprehensive
statute wherein the Legislature specifically
dealt with each possible option regarding
the parties to a TTCA suit: (1) when suit is
filed against the governmental unit, suit or
recovery against the individual employee
regarding the same subject matter is
barred by Code section 101.106(a); (2)
when suit is filed against the government
employee, suit or recovery by the plaintiff
against the governmental unit regarding
the same subject matter is barred absent
consent of the governmental unit by Code
section 101.106(b); and (3) when suit is
filed against both employee and governmental
unit, suit against the employee
shall immediately be dismissed on the governmental
unit’s filing of a motion to dismiss
under Code section 101.106(e). Under
this statute, when TTCA claimants elect to
include the governmental unit as a party
to a suit, whether alone or in conjunction
with a governmental employee, TTCA
claimants have made an election of remedies
that they will look solely to the governmental
unit for compensation for
injury. Villasan, supra.
Note that if a suit is dismissed against
the governmental entity on summary
judgment finding governmental immunity,
that judgment against the entity precludes
suit against the employee. Hathaway
v. Wichita Falls State Hospital, 2004
WL 1416279 (Tex. App. – Tyler, 2004, no
pet) (not designated for publication). Fiske
v. Heller, 2004 WL 1404100 (Tex. App. –
Austin, 2004, no pet.) (not designated for
publication). Importantly, in a case in
which the physician was dismissed under
the mandatory substitution clause, and
plaintiff amended his pleadings to add the
defendant entity, the pleading was allowed
to relate back to defeat the hospital’s
statute of limitations defense. The hospital
was not misled or disadvantaged by the
substitution, and the amendment to the
pleadings was not based on new, distinct,
or different transactions. Bailey v. University
of Texas Health Science Center at San
Antonio, ___ S.W. 3d ___, 2008 WL
1733230 (Tex. App. – San Antonio 2008,
n.p.h.).
II. THE STATE OF HEALTH CARE IN
TEXAS IN 2008; BENEFITS OF HB4 AND
PROP. 12?
The primary impetus for drastic changes
to medical malpractice law proposed in
2003 was a so-called medical liability “crisis.”
The alliance of insurance executives,
hospital administrators, and tort reformers
threatened Texans with a mass exodus of
physicians, diminished access to care,
increasing liability coverage rates and
unavailable health insurance coverage. If
HB 4 was passed and Proposition 12
approved, they promised an influx of
physicians who would serve rural and
stressed communities, decreased liability
premiums, and available, affordable health
coverage for Texans.
One of the primary challenges in determining
any causal effect HB 4 or Prop 12
had on such metrics is understanding the
true conditions which existed before
changes in the law were passed. Barriers to
prosecuting lawsuits or capping recoveries
are supposedly efforts to reduce litigation
and its exposure. The primary claims of
“crisis” were of increasing claim numbers
and increasing payouts. However, in 2005,
legal scholars from three major universities,
including Professors Silver and Black
from the University of Texas, found that
the number of large medical liability payments
(over $25,000) in Texas were stable
between 1991 through 2002, while the
number of small claims dropped significantly.
Bernard S. Black, Charles M. Silver,
David A. Hyman and William M. Sage,
Stability, Not Crisis: Medical Malpractice
Claim Outcomes in Texas, 1988-2002, Univeristy
of Texas Law & Economics
Research Paper No. 30; Columbia Law &
Economy Research Paper No. 270; University
of Illinois Law & Economics
Research Paper No. LE05-002, March
2005. Additionally, the number of claims
per 100 Texas doctors fell 28.12% (from 6.4
to 4.6) between 1990 and 2002. Id. Thus,
correlation of the “before” and “after”
should be based on something more than
a threat, a promise, and a new landscape.
Were doctors leaving?
Statistics from the Texas Medical Board
(TMB), show that since 1997 Texas has
seen a steady increase in the number of
doctors licensed to practice medicine.
Between 1997 and 2003, Texas had an average
annual rate of increase in medical
licensees of 3.5%. Not only was there not a
decrease in the number of doctors obtaining
licenses, but there was a dramatic
jump in the rate of new licensees the year
before Proposition 12 was debated and
passed. In 2002, the rate of increase
jumped to 5.11% – well above the average
rate of annual growth.
Proponents of HB 4 offer absolute
numbers from TMB showing an increase
of 8,391 licensed physicians from 1999 to
2003, compared to 10,878 from 2004 to
2007. See “A Texas Turnaround,” Texans
for Lawsuit Reform Foundation, Whitepaper,
April 2008. But when measured by
ratios of annual growth, those absolute
numbers are consistent with growth experienced
before HB4 was passed. When it
comes to whether those increases represent
physicians actually treating patients,
the data is even less compelling. The Texas
Department of Health reports that in
2006, Texas gained only 639 direct care
physicians – those actually practicing
medicine. This is an increase of just 1.8%,
slower than it was pre-Proposition 12. See
Charles Silver, Did Texas Lose Physicians
in 2006? Is Tort Reform to Blame?,
TORTDEFORM.COM, November 30,
2006.
Additionally, what kinds of physicians
respond to a call to practice where there is
no accountability – the best or the worst?
There is anecdotal evidence of physicians
with long claims histories and the inability
to obtain licenses in other states as those
responding to the siren call of caps on
patient recoveries. See Cheryl W. Thompson,
Doctor Formerly in Va. Applies for
Tex License, WASHINGTON POST, July
15, 2005.
Is there increased medical availability?
The promise of service in underserved
regions was made repeatedly. But analysis
of medical service in underrepresented
areas requires examination of regional
data, not statewide absolute numbers. The
absolute increases continue to be found in
metropolitan, well served areas (where the
typical quality of life concerns of well educated
professional are fulfilled). When we
look at particular regions of the state, we
see that underserved areas remain underserved.
In 2006 – three years after Proposition
12’s enactment – rural, remote, and
indigent parts of our state continue to
struggle with rates of physician growth far
below the statewide average of 3.54% over
the last decade. Rural West Texas has actually
experienced negative growth.
According to data from the TMB and
TDH, the underserved regions in our state
saw lower average growth in the rate of
new doctors in the three years since
Proposition 12 passed (2004–2006), than
in the three years before (2001–2003). See
Table 1.
During the debate on Proposition 12,
proponents of the measure also bemoaned
the lack of specialists – especially obstetricians
– in counties all across Texas. In fact,
they noted that 60% of Texas counties did
not have a practicing obstetrician. According
to TMB statistics, 152 of Texas’ 254
counties (59.8%) did not have an obstetrician
in May 2003. Unfortunately, that
trend persists. Sadly, fewer Texas counties
have an obstetrician today than before
Proposition 12. By September 2007, 156
counties (or 61.4%) reported no obstetrician
licensed to practice in their county.
See www.tmb.state.tx.us
Did medical malpractice insurance premiums
decrease?
Correlation between a cap on non-economic
damages and insurance premiums
always seemed tenuous at best. By the
insurance industry’s own admission, noneconomic
damages are only a small percentage
of total losses paid. See The Medical
Protective rate filing to the Texas
Department of Insurance, October 30,
2003, posted at http://www.consumerwatchdog.
org/malpractice/rp/2059.pdf. In
the four years preceding the debates of
2003, insurance companies increased premiums
on doctors as much as 147.6%. See
Texas Department of Insurance, Medical
Malpractice Insurance: Overview and Discussion
(Table 1: Estimated Physician and
Surgeon Medical Malpractice Rate
Changes), February 12, 2003.
Correlation of rate reductions and civil
law changes becomes more opaque when
examining the immediate experience after HB 4. In the period just after Proposition
12 passed, insurance companies refused to
reduce their premiums and many of the
major carriers sought rate increases:
The Medical Protective, the nation’s
largest medical liability insurance
provider, asked for a 19% rate
increase one month after Proposition
12 passed. In its filing to Texas
insurance regulators, the company
stated: “Non-economic damages are
a small percentage of total losses
paid. Capping non-economic damages
will show loss savings of 1.0%.”
Supra.
The Medical Liability Insurance
Association (JUA), which covers
12.3% of Texas doctors, asked for a
35.2% rate increase immediately
after Proposition 12’s passage. See
JUA rate filing to the Texas Department
of Insurance, October 2003.
American Physicians Insurance
Exchange, the state’s third largest
medical malpractice insurance company
with 15.0%, requested a 16.6%
rate increase in September 2003. See
American Physicians Insurance
Exchange rate filing to the Texas
Department of Insurance, September
2003.
Through March 2006, medical liability
premiums fell just 13.5% market wide. See
Texas Department of Insurance, Texas
Medical Professional Liability: Physicians,
Surgeons and Osteopaths (chart), March
15, 2006. Preferred Professional Insurance
Company actually increased its premiums
33.5% in the 3 1/2 years after the passage of
HB 4. Id. Every business should be so
lucky to raise its prices almost 150%, then
decrease prices 15% in the same time interval
and proclaim “New Low Prices!” Nor
does this reduction represent an “apples to
apples” comparison. While absolute premium
costs have generally been reduced in
the past 5 years, coverage has likewise been
reduced. No data establishes any reduction
in the ratio of coverage to premium cost.
Reducing premiums 10% while reducing
coverage 40% is not a reduction – it is an
insurance company utilizing legislative
power to liquidate its exposure and offering
nothing real in return.
Lastly, the challenge of any fair correlation
between malpractice premiums and
civil justice changes in Texas demands
that data from Texas Medical Liability
Trust (TMLT) be analyzed for the years
preceding and following HB 4. Unfortunately,
this data is not available. According
to its website, TMLT insures over 14,000
Texas physicians. However, TMLT is a
unique insuring entity, a trust created by
statute. It is not subject to regulation by
TDI nor does it file the rate and claims
data discoverable from other insurers.
Reduced care costs resulting in health
insurance for more Texans?
Statistics have historically established that
liability premiums constitute less than 1
cent of a dollar spent on health care.
Nonetheless, health care cost inflation over
the past 5 years has been 75% more than
the inflation rate for all items in the CPI.
See http://www.cdc.gov/nchs/data/
hus/hus07.pdf#122. Since 2003, neither
national nor Texas experience supports
any correlation between reducing cost of
malpractice premiums and a tapping on
the brakes to slow health care cost inflation.
The objective data show that health
care in Texas continues to have cost
increases consistent with the national
inflationary experience.
Access of Texans to care is more directly
tied to the ability of patients to get
health insurance than costs. Here, Texas
experience is inconsistent with the national
averages. According to both the Texas
Department of Insurance and Texas Medical
Association, 25% of all Texans do not
have access to health insurance, constituting
well over 5.5 million Texans without
health insurance. See Texas Department of
Insurance, Biennial Report of the Texas
Department of Insurance to the 80th Legislature,
December 2006, http://www.tdi.
state.tx.us/reports/documents/finalbie07.p
df; Texas Medical Association, Report on
the Uninsured in Texas, http://www.
texmed.org/Template.aspx?id=5517.
Unfortunately, nothing done in 2003
has reversed Texas’ dismal record on this
metric. Despite claims that Texans would
have greater access to health care, Texas
continues to have the highest rate of uninsured
adults among the 20 largest states.
While some data could have argued Texas
was 49th in the nation for access to health
care in 2003, in 2008 it is now undisputed
– we are dead last. See, e.g., Katherine Shea, U.S. Variations in Child Health System
Performance, A State Scorecard
(Appendix, Table 1.1), The Commonwealth
Fund, Vol. 94, May 2008.
Perhaps this new distinction is directly
attributable to HB 4?
Paula Sweeney is with Howie &
Sweeney, L .L .P. in Dallas.
Jim M. Perdue, Jr. is with Perdue &
Kidd, L.L.P. in Houston.
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